Luke Gosling (Solomon, Australian Labor Party) Share this | Link to this | Hansard source

Our government is committed to ensuring that the legal framework of the national intelligence community, the NIC, is fit for purpose, proportionate and properly oversighted. These agencies keep Aussies safe from hostile foreign intelligence services, military threats, criminals and other cyber actors. But, to do their job properly, the NIC need the trust of the Australian public. That trust rests on a complex legal framework which underpins the activities of our intelligence agencies. It underpins the accountability and assurance that are vital to the integrity of our national security apparatus. That is why this bill is so important.

The bill responds to a broad set of recommendations that were made in the 2019 Comprehensive Review of the Legal Framework of the National Intelligence Community. The review was delivered by Dennis Richardson to the former government in 2019. A declassified version of the report and the former government's response were released publicly in 2020. The report made 203 recommendations, 13 of which are classified. To date, 30 recommendations have been implemented, 53 require no further action and 120 are in progress. This bill seeks to implement 10 outstanding recommendations that fall within the Attorney-General's portfolio responsibility.

First, the review recommended that the Law Officers Act be amended so that the Attorney-General could not delegate their power to issue warrants under the ASIO Act. That means that he or she could not delegate sensitive powers to the Solicitor-General, the Secretary of the Attorney-General's Department or any other public servant. The bill would implement that recommendation. The Attorney-General, as the first law officer of our land, has a unique role with respect to ASIO. These measures ensure that appropriate ministerial responsibility and accountability are maintained in relation to the powers in the ASIO Act.

Second, the review also recommended that the Attorney-General's ASIO powers should not be able to be conferred on another minister through an action of the executive. The review recommended that the Governor-General's ability in council to make a substituted reference order regarding the Attorney-General's role in exceptional cases should be retained—

A division having been called in the House of Representatives

In continuation, on some of the Attorney-General's roles that are in this legislation, one of them is his or her role in exceptional cases—that should be retained and would only be used in exceptional circumstances, such as when there is no Attorney-General. The bill would implement that recommendation. It also amends the ASIO Act and the Telecommunications Act to remove the ability of the executive to confer the Attorney-General's ASIO powers onto another minister. This could still be done through legislative amendment. As the first law officer, the Attorney-General has a unique role in authorising the use of covert or intrusive powers, and these amendments will ensure that in most cases the Attorney-General's ASIO powers cannot be conferred on another minister through an action of an executive.

I welcome this reform, which signals how seriously the Albanese government takes the need to ensure the clear demarcation of portfolio responsibilities in cabinet. This is especially important concerning intelligence agencies because of the close relationship, mentioned previously, between transparency and accountability and the public's trust in the national intelligence community. We need to keep the Australian people fully informed of who exercises these important powers and when and how they do so, and that is exactly what this bill does. I don't need to remind honourable members that in the former federal government we had a case where we didn't even know there were double responsibilities held by first ministers. That has eroded trust, and this is part of making that transparency clear to everyone and rebuilding the public's trust.

Third, another recommendation was that the defence, in subsection 474.6 of the Criminal Code should be extended for ASIO so that it applies to all offences in that section, which concerns interference with facilities owned by a carrier. The defence states that a person is not criminally responsible if they are a law enforcement officer or an intelligence security officer acting in good faith in the course of their duties. This provides a defence for ASIO concerning unauthorised modification of data to cause unauthorised impairment electronic communication. This provides a defence for ASIO concerning unauthorised modification of data to cause impairment and unauthorised impairment of electronic communications. These amendments will assist ASIO to better protect Australia and its interests from the growing security threats—and they are growing. In February, the head of ASIO reminded Australians that we face foreign interference levels eclipsing those of even the Cold War, and that is just one among a wide spectrum of escalating threats we face as a nation.

Another part of the bill would amend the Intelligence Services Act so that membership of the Parliamentary Joint Committee on Intelligence and Security increases from 11 to 13 members. This has been the subject of some commentary in recent times. It sets out that the committee would include at least two government senators, two government members of the House of Reps, two non-government senators and two non-government members of the House of Reps. The remaining five members can be drawn from either chamber. A consequential amendment would also be made to raise the number for quorum in the PJCIS from six to seven members. These changes will allow greater flexibility in determining the committee's membership.

Fourth, the comprehensive review also recommended that exclusions in the spent convictions scheme be expanded to enable ASIO to use, record and disclose this information. This scheme of the Crimes Act aims to prevent discrimination on the basis of older, less serious convictions by limiting their use and disclosure. This bill would create an exclusion for ASIO. In a dangerous world, access to spent conviction information is necessary and proportionate for ASIO to perform its functions and protect Australia from security threats.

Fifth, the review recommended that the Inspector-General of Intelligence and Security should be required to report annually on public interest disclosures and complaints. The bill implements this recommendation, which will ensure even greater transparency and accountability in the National Intelligence Community. This will be done, to the extent possible, without compromising national security, of course.

Sixth, the review also recommended that ASIS, AGO, ASD, ONI and DIO should be excluded from the Ombudsman's jurisdiction, which this bill implements. ASIO, of course, is already excluded from the Ombudsman's jurisdiction. By convention, the Ombudsman currently does not investigate action taken by the rest of these agencies, although they do fall within its jurisdiction. These agencies are already overseen by the inspector-general, Australia's dedicated intelligence oversight body. That is why excluding ASIS, AGO, ASD, DIO and ONI from the jurisdiction of the Ombudsman would reduce unnecessary overlap in the oversight of these agencies.

Seventh, another recommendation of the review was to amend the Freedom of Information Act to remove AGO's exemption for its non-intelligence functions. This bill removes that exemption only for those documents that have originated with, or have been received from, the AGO's non-intelligence functions in the Australian Hydrographic Office. Currently the whole of AGO is exempt from the operation of the FOI Act. This is appropriate in relation to the AGO's intelligence functions, where sensitive information, if released, could cause harm to Australia's national security, but the Australian Hydrographic Office does not provide an intelligence function. So these amendments will increase transparency over this aspect of the AGO.

Eighth, the bill also implements the review's recommendation that the FOI Act be amended. This is so that documents relating to suspicious matter reports and suspicious transaction reports are exempt from the FOI Act. This exemption would occur, whether these documents are in the possession of AUSTRAC or another agency. The FOI Act currently provides that such documents are exempt only if they are in the possession of AUSTRAC. Given the sensitive nature of documents of these kinds, it is appropriate that the exemption be extended in this way.

Ninth, the bill also actions the review's recommendation that all security matters under the Archives Act should be heard in the Security Division of the Administrative Appeals Tribunal. This will ensure that national security information is subject to appropriate protections.

Tenth, the review also recommended that the FOI Act and the Archives Act should be amended. This is so that the inspector-general is only required to provide evidence that addresses the damage that would arise from the release of material involving the agencies it oversees. Currently, the inspector-general must comply with a request to appear before the AAT to give evidence, unless it is of the opinion that they are not qualified to give evidence.

In a final amendment, the bill proposes that the IS Act provide greater certainty of the level of detail required by the foreign minister when directing the Australian Secret Intelligence Service, or ASIS. The practice to date has been for the minister to direct ASIS to undertake activities by reference to a purpose. The amendment is intended to make clear that the minister may direct ASIS to undertake an activity which can be of a specific or general nature or by way of a class or classes. Where a class has been specified by the minister, ASIS will be responsible for ensuring that a proposed activity falls within that class.

This bill strikes the fine balance between empowering the intelligence agencies that protect us from the growing threats that are real while enhancing the already high standards of transparency and accountability in the National Intelligence Community. I want to quote ASIO Director-General, Mike Burgess, who I mentioned earlier and who, in this year's threat assessment said:

Based on what ASIO is seeing, more Australians are being targeted for espionage and foreign interference than at any time in Australia's history.

More hostile foreign intelligence services, more spies, more targeting, more harm, more ASIO investigations, more ASIO disruptions.

From where I sit, it feels like hand-to-hand combat.

That gives you a sense of the seriousness of the issues that we face and the need for this legislation. And that's what we are seeing and hearing not just from ASIO but from a range of government agencies. It is commonly said by many, indeed, by our government and I think by anyone across the chamber with any sort of strategic bone in their body, that we live in the most challenging strategic environment since the Second World War. It is so commonly said that we sometimes forget exactly what this means, but what it does mean is that even the Cold War, with all the peril of nuclear war that hung over the world, did not represent as a direct threat to Australia's sovereignty as the present circumstances do. The only worse within living memory for Australian security was the carnage of the last world war that was fought over and around our sea lanes and approaches, including the direct targeting and bombing of Darwin. It is my electorate. We're well aware of how serious those times were, but, from then until now, many of us in public life do acknowledge this sobering fact that we are in a period of significant strategic competition and threat.

Not enough of us pay tribute to our intelligence community, whose job it is to help Australia navigate the storms around us and give our leaders warning and foresight of dangers through the briefings that they give. We rightly honour the military in our country, whose job it is to always be ready to defend Australia when our strategic circumstances go from uncertain to cataclysmic but also for the whole range of operations that our ADF does in peacetime.

We always acknowledge our veterans, but I want to give a particular shout out to the veterans in the National Intelligence Community for the work that they do. They are highly capable men and women in our intelligence agencies, and they keep us safe.

This bill implements sensible reforms that support our agencies while also strengthening their accountability, and it is for that reason that I commend it to the House and look forward to the contributions of other members.

Andrew Wallace (Fisher, Liberal National Party) Share this | Link to this | Hansard source

I rise to speak in relation to the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 2) Bill 2023. As the Deputy Chair of the Intelligence and Security Committee, it's been my privilege to be intimately involved in the examination of this bill.

I'd like to commence by firstly saying that, of course, an Australian government has no greater responsibility than to ensure the protection of its citizens and the homeland. It brings me no joy to have been the deputy chair sitting on the committee when we had to provide a dissenting report—the first time in 17 years. There has only ever been one other dissenting report of this committee, and that was in relation to the listing of the Kurdistan Workers Party. This committee was formed in August 1988. Prior to this inquiry, on only one other occasion has the committee not spoken with one voice. So it was with great reticence that the opposition felt that it had to stand opposed to the recommendations of the majority and, therefore, also this bill. The opposition cannot support this bill in its current form.

The bill itself is relatively uncontroversial. We don't quibble with the 10 items that arose out of the Richardson comprehensive review. That comprehensive review done by Dennis Richardson was the most significant piece of work done on our national intelligence architecture since the Hope royal commissions of the seventies and eighties. The implementation of the 203 recommendations of that comprehensive review has been ongoing for a number of years. There was no rush by the previous government and there has been no rush by this government to deal with it. It has been going through those 203 recommendations in a calm, methodical manner. The inquiry which was undertaken, which was the precursor to the bill—or of the bill, I should say—examined just 10 of the recommendations, and there are more to come. We don't quibble with those 10 recommendations; the opposition in fact supports them.

The 11th recommendation, as the previous speaker, the member for Solomon, referred to, was to clarify the foreign minister's role in directing ASIS. There has been some contention about whether those directions were clear enough under section 6(1)(e) of the Intelligence Services Act. We don't quibble with that. But what we do quibble with is this government's decision to sneak—because that's what it has done—changes into section 28(2) of the Intelligence Services Act.

The sole basis of dissent between the opposition and government members is in relation to the composition of the PJCIS. The PJCIS, the intelligence and security committee, is regarded as the most important committee in this place. Members of this and the other place scramble to get on this committee. It is a committee of some note. It's a high-profile committee. It is a committee where our intelligence agencies share information with members and senators on that committee to top-secret level. It is the only committee in this place that has that exposure. No other committee does. So membership of this committee is highly sought after.

What the opposition is very concerned about is lifting the composition of the committee from 11 to 13 members. That might sound like a fairly innocuous type of thing. Attorney-General's in their submissions to the inquiry said, 'You guys are overworked,' and we are. 'You guys are overworked; we'll give you another two members.' But that is a total, utter ruse. The government seeks to add members to this committee, I fear, because it has done a grubby deal with some, perhaps all—I don't know—members of the crossbench. For what purpose, once again, I don't know. Whether it's because of support for legislation that has gone through the parliament or support for legislation that will go through the parliament, time will tell. Time will tell when this bill ultimately passes, because it will pass, sadly. The laws of arithmetic are against us.

The government provided no consultation whatsoever—no meaningful consultation, at least—on this bill. Ordinarily, the government in relation to intelligence bills would provide a six-week period in which to conduct an inquiry. Often there's a consultation period of a month to six weeks. Do you know how long the government provided for consultation with stakeholders on this bill? I will tell you. Five business days. The committee received complaints from stakeholders saying: 'What? Five business days? We can't respond in five business days.'

The government did not consult with the opposition on this bill. This is a bill on national security, which is very, very important. The government should have consulted with the opposition on this, but it didn't. It has tried to ram through this change to the PJCIS under the cover of darkness, under the cover of all of these other recommendations which we support. Members of the government will stand up here in this place when they are talking about this and they will talk about all the other 11 changes and they will maybe just refer a little bit to the composition of the PJCIS.

In the inquiry I asked the Director-General of Security a very simple question: if there are more people who know a secret, is there a greater risk of that secret coming out? The answer to that was yes. He talked about the need-to-know principle. That's why we have the need-to-know principle. The fewer people who know a secret, the less chance there is of it coming out, either inadvertently or otherwise. So by changing the composition of this committee we are running the risk of having a greater chance of secrets being leaked, either inadvertently or advertently.

I also have great concerns that this could have a chilling effect on the information that is shared with this committee. Since 1988, there has only ever been one nonmember of a party of government that has sat on this committee. By convention, the only members who sit on this committee are from parties of government. Why is that important? Because ultimately we are talking about matters of national security. When those opposite are in government—they are a party of government, just as we are a party of government—their obligation as a party of government is to protect Australian citizens. It's their obligation to ensure when they are in government that those laws are sounds, that they are workable, just as it is when it's our turn and we are in government.

I am very concerned that by bringing a nonmember of a party of government onto this committee we will see a chilling effect on what is shared between our intelligence agencies and the committee. Madam Deputy Speaker Sharkie, you may have a very different view to me on this, being a member of a party that is not in government, and you are entitled to your view. But the reality is that since 1988 this has been a convention—that only members of parties of government sit on this committee—and that is for a very good reason. I'm not impugning you or any of your colleagues, but there is a very good reason that we have had this convention in place. But this government is changing that convention, and I'm very concerned about it.

This committee is under immense stress and pressure all the time because of the number of inquiries it deals with, but it provides a degree of corporate knowledge—I'm a little hesitant to use the word 'expertise', because in this place you have to be a bit of a jack of all trades. But, by virtue of the fact of the workload of this committee, you do become a bit of a quasi-expert in intelligence and security. Increasing the number of members from 11 to 13 could promote a situation whereby fewer people decide to turn up to meetings, to hearings. The nature of the changes that are suggested in this bill is that it changes the composition to two government members from the House, two government members from the Senate, two non-government members from the House and two non-government members from the Senate, and the other five can come from either house. That means that if a government of the day wanted to be underhanded it could appoint, in the four places that are restricted to non-government members, purely crossbench members, cutting out the opposition entirely. That is a fact. That is an unmitigated, unmistakable fact. It could do that.

It is incredibly important that on this committee, more so than on any other committee, there is a bank of members and senators who have an understanding—a good corporate-knowledge understanding—of issues of national security, because the tide always turns. The Labor Party might think they're in there forever, but the tide always turns. Politics is cyclical. And it is in the country's best interests to ensure that there are members of both sides who are competent, who are experienced and who are knowledgeable in matters of national security. We will continue to fight these changes, because we believe they are bad for this country's national security.

Peter Khalil (Wills, Australian Labor Party) Share this | Link to this | Hansard source

I would like to come to some of the matters raised by the member of Fisher, the deputy chair of the Parliamentary Joint Committee on Intelligence and Security, but I want to start by speaking to some of the amendments and recommendations around the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 2) Bill 2023 that have been agreed to. The Parliamentary Joint Committee on Intelligence and Security, which I chair, put a report through with recommendations around the review of the bill to implement 10 recommendations of the 2020 Comprehensive Review of the Legal Framework of the National Intelligence Community, otherwise known as the Richardson review, after Dennis Richardson, the review's author, and these relate to the Attorney-General's portfolio. That review made 203 recommendations, 13 of which are classified. To date, 30 recommendations have previously been implemented; 53 required no further action; and 120 are currently in progress.

This bill proposes two amendments to the Intelligence Services Act 2001 as well. The recommendation of the Richardson review implemented by the bill seek to improve and modernise various legal provisions, ensuring the national intelligence community can continue to undertake its important work effectively and with appropriate accountability in the current circumstances that we face and into the future.

The bill also considers principles delivered by Justice Hope 40 years ago outlined in the review which highlighted the importance of agencies being held accountable and operate in accordance with the law with respect to human rights and fundamental freedoms while remaining politically impartial.

This bill would amend multiple acts in implementing the 10 recommendations of the comprehensive review, the Richardson review, would also increase the number of members appointed to the Parliamentary Joint Committee on Intelligence and Security and provide a more flexible composition of members from the House and the Senate. It would also clarify the level of detail required to describe a number of additional activities that the foreign minister may authorise to be undertaken by the Australian Secret Intelligence Service. Implementation of those recommendations from the comprehensive review provide the most detailed consideration of our national security laws through the 203 recommendations that I touched on earlier.

The bill also includes amendments to address the following recommendations. Recommendation 18 is to amend the Law Officers Act 1964 to remove the ability of the Attorney-General to delegate their powers under the Australian Security and Intelligence Organisation Act 1979 with the exception of measures relating to the provision of financial assistance. Recommendation 19 is to amend the Acts Interpretation Act, ASIO Act and Telecommunications (Interception and Access) Act to prohibit the conferral of the Attorney-General's powers with respect to the Australian Security and Intelligence Organisations through executive action—instead, requiring legislative amendment—and the Governor-General would be able to make a substitute reference in ordering in respect of the Attorney-General only if the Prime Minister is satisfied exceptional circumstances exist.

Recommendation 66 is to amend the Criminal Code Act to include Defence in a number of subsections, especially where ASIO officers are acting in the course of their duties and where that conduct is reasonable in the circumstances. Recommendation 136 is to amend the Crimes Act to expand exclusions to the spent convictions scheme. Recommendation 145 is to amend the Inspector-General of Intelligence and Security Act and the Public Interest Disclosure Act to require the Inspector-General of Intelligence and Security—IGIS for short—to report annually on public interest disclosures received by or allocated to the IGIS and complaints made to the IGIS. Recommendation 167 is to amend the Ombudsman Act 1976 to exclude the Australian Secret Intelligence Service, the Australian Geospatial Intelligence Organisation, the Australian Signals Directorate, the Office of National Intelligence and the Defence Intelligence Organisation from the jurisdiction of the Commonwealth Ombudsman. These agencies are subject to the jurisdiction of the IGIS—Inspector-General of Intelligence and Security—which is the dedicated oversight body for intelligence and security matters alongside the PJCIS with the oversight work we do.

Recommendation 186 is to amend the Freedom of Information Act to remove the ATO's freedom of information exemptions with respect to its non-intelligence functions regarding the Australian Hydrographic Office. Recommendation 188 is to amend the FOI Act to provide consistent exemptions under the FOI scheme to suspicious matters reports and suspicious transaction reports produced by the Australian Transaction Reports and Analysis Centre. Recommendation 191 is to amend the Archives Act and the AAT Act to provide that all security matters arising under those acts are heard in the security division of the AAT, the Administrative Appeals Tribunal.

Finally, recommendation 192 is to amend the FOI Act and the Archives Act so the IGIS is only required to provide evidence in proceedings under those acts where the material in a proceedings relates to one or more of the agencies the IGIS oversees. There is quite a lot of detail there. All of those recommendations and in particular the 10 recommendations, some of which I have detailed, have been supported in a bipartisan fashion by the opposition members of the PJCIS as well as the opposition, I think, generally speaking. There's certainly no opposition to those recommendations. These have been in train for quite awhile, as I mentioned, with the Richardson review. There's also bipartisan support for the changes to ASIS. I think the Deputy Speaker and the member for Fisher noted that those hearings were classified hearings with respect to some of the ministerial directions and activities that ASIS conduct under the direction of the Foreign Minister.

The bill, as I noted, would also amend the Intelligence Services Act to increase membership of the Parliamentary Joint Committee on Intelligence and Security from 11 to 13 members. The bill maintains the government majority on the committee. In addition, the bill will amend the current requirement of six MPs from the House of Representatives and five senators, changing it to provide a minimum of four MPs, including two government and two non-government MPs from the House, and four senators, including two from the government side of the Senate and two from the non-government side of the Senate. That's the change. The remaining five members can be drawn from either house of parliament. This is an important amendment because it provides greater flexibility for the composition of the PJCIS's House and Senate members while preserving the requirements for the committee to comprise members from both chambers.

This committee has longstanding bipartisanship and collegiality. The opposition members, the non-government members and the government members on the committee have worked, I think it's safe to say, if I can speak for previous chairs and committee members, in the most respectful way to try to reach consensus that is considered in the national interest for our national security, and that has been done in good faith for a long time. Of course, as I mentioned, the opposition members have supported the changes to everything in this bill, including the changes to ASIS. However, it is the first time in 17 years that the committee hasn't reached a consensus. The opposition members chose, for the first time in 17 years, to break that bipartisanship to make a dissenting report on just that one recommendation in relation to the composition of the PJCIS. For my part as the chair, it is extremely disappointing that the opposition have chosen to politicise this particular change, because, frankly, there is a fair bit of misinformation and disinformation that has been bandied about which I would like to address now.

In the House, the member for Fisher and the member for Canning have made a number of points in their contributions to this place in respect of the bill. They argued that there was a long period of time to form the committee and this was somehow the government's fault. Let's be clear about that. The negotiation to form a committee and ensure committee members are chosen for PJCIS, as I said earlier, currently requires you to have six members of the House and five members of the Senate. This is part of the issue of flexibility. There was back and forth about determining which non-government and government senators could conceivably be put on the committee, and that's often a consultation that occurs. That is really part of the reason for the change with this amendment. It is to give further flexibility while maintaining members from both houses. The difficulty of having that higher bar of five and six is removed. That's an important point to make amongst all the misinformation that we're hearing.

The other points being made—and I heard them from the member for Fisher just before I rose to speak—are about these changes somehow changing the composition of the committee with the appointment of non-government members not from any of the political parties. The fact is this: the power to appoint any senator or member of parliament to the PJCIS currently exists. These changes do not change that power. That exists today and has existed for a period of time. There have been in the past other non-government members of the committee who have not come from a major political party. It has happened. The power exists and has existed for a period of time. These changes—which they are choosing to put out a dissenting report on, choosing to politicise and, in doing so, choosing to break the bipartisanship of 17 years—have no bearing on that power. The Prime Minister, in consultation with others in the parliament, can appoint any member of parliament, from the House or the Senate, to the committee. That has not changed. To make a disingenuous argument that they would oppose these changes around increasing the numbers and composition of the committee and somehow extrapolate from that that they know what's going to happen in the future, I think, is very disingenuous and very disappointing.

I would like to put on the record that these changes, these amendments, have no bearing whatsoever on the power that currently exists to appointment members of parliament to this committee. That's an important point to make because there's been a fair bit of misinformation about that. As I said, the member for Fisher claimed that there's no evidence that the changes to the composition of the committee would lead to greater oversight and accountability. Well, actually, there's a very intense workload for this committee. I think everyone on the committee knows this. They know the reality of this—the important work that is conducted by the committee—and there is a great volume of work in the oversight of all of the national intelligence community and the security agencies. It is a very intense workload. Having members on that committee conduct that work is important. I think the changes, as I said, will add to the flexibility and relief of the workload that exists for this committee.

Put simply, the amendments to the composition of the PJCIS allow for that flexibility, and increased membership of the committee allows for engagement in this important work by members of parliament. That's an important point to make. I want to put those facts on the record. I'm pleased that the opposition is supporting all of the elements of this bill, particularly those that we recommended in the PJCIS report we handed down. It is disappointing that they chose to make a dissenting report on one particular aspect of the work on this bill.

In conclusion, I make the point that I would hope the opposition understands—and I think some of them do—the important nature of the work that is done in the national interest by the PJCIS. I hope that they would not seek to politicise that to score cheap political points in the media. I hope that the collegiality and bipartisanship in the work that we do, which is so important in this committee, is maintained, because we are in probably the most volatile strategic circumstances that we've faced as a nation in decades. The work we do to oversee our intelligence community and our security agencies is a critical part of ensuring that they are held accountable but that the taxpayer dollars that are spent on these agencies are spent in the best possible way to get the best value both for the work that they do and for the Australian people. It is an important role. I hope this is an aberration rather than something that will be continued by the opposition, and I hope we can work in a constructive way going forward.

Keith Wolahan (Menzies, Liberal Party) Share this | Link to this | Hansard source

I thank the member for Wills, who is also the chair of the PJCIS. I don't like to come into this place with just talking points. I listened very closely to what he said, and I'll adjust what I say in reply, because I think that's the duty that we all have in this place. He said some things that gave some comfort, I thought, and he deserves credit for that.

I will start by reiterating the role of this important committee. It's an important one. I don't serve on the committee, but I'm glad that it is there. It has three main functions. The first is to provide oversight of Australian intelligence agencies by reviewing their administration and expenditure. The second is to build bipartisan support for national security legislation by amending national security bills introduced to parliament. Sometimes that involves quite technical legal work. It's easy to focus on the intelligence and national security roles of the agencies, but how they interact with our laws and regulations is of utmost importance. Some of those can lead to really sensitive and difficult interactions with our court system. That's not easy, because we have principles of open justice that sometimes clash with some other principles of need to know. They're not easy, and we have to preserve both.

The third is ensuring that national security legislation remains necessary, proportionate and effective by conducting statutory reviews, because, in the end, our primary duty is to keep our nation safe, but we must never forget that we have civilian control over that, whether it's the military or national security intelligence agencies. That's very important in a democracy or, indeed, any other form of government—that there is civilian control. That is why this committee is quite important.

The member for Wills did, quite rightly, note that there is a unique dissenting report. In fact, there hasn't been one put for 17 years. That was a fact that happened with disappointment from this side as well—we wish it didn't. It seems to me, as an observer listening to the member for Wills, one of the reasons that that occurred is there wasn't the consultation and communication there otherwise is and there should have been. When you analyse conflict and disagreement, whether it's in a family, in a court or in a parliament, there is usually a healthy dose of miscommunication. And, if there's miscommunication, the onus is on both those who should have communicated and those who were there to listen. I have no doubt that that is a factor here. But we are the opposition, the other side is the government. The onus is on you to communicate better, and, if there's anything you can take out from this, it is that there should have been better communication.

I also thank the members who are in our national security and intelligence agencies. Unlike those who've served in the military and do get acknowledged on Remembrance Day and on Anzac Day and on other days, as they should, they don't get that. Whether it's overseas or domestically, they put their lives on the line, they work irregular hours and they generally don't get our thanks for that. It's important that we thank them for the work that they do, because the times that we are kept safe or that our national interest is advanced doesn't make the papers and it doesn't even get discussed in this place, but we are always very grateful for that. That is an important thing to acknowledge.

The other thing I'd like to do is to focus particularly on where we disagree because it just comes to one part. It's the part where the membership of the committee will go from 11 to 13. The member for Wills has said that there is no change to the power of the Prime Minister to appoint members from the House or the Senate, and many others have given contributions about whether the members should be from parties of government. I understand that argument, that there is a potential for hubris in that argument because none of us should have a claim on being of government—we have to earn that right—so I won't go there.

I will say this: when it comes to protecting our secrets, whether it's a national intelligence agency or otherwise, the need-to-know principle is just as important about whether you have a right to know or you're cleared to know. The reason the need-to-know principle is important is because it is a human instinct to think that if I tell one person a secret I've still kept it. We all would have heard times when someone has said: 'Hey, I've got this secret. Just between you and me, here it is.' And they think: I've still preserved my duties in keeping that secret. That's what humans do. There are studies that have been done on that. And then that one person thinks they have a right to tell one other person, and on and on it goes. So the fewer people who know things the better.

We saw that. I think one of the most impressive parts of the AUKUS negotiation was how tightly held that was. One of the reasons it was so tightly held was because very few people knew about it. I'm sure there were people who in executive positions or were in agencies who were quite grumpy about that, but that is extremely important, because the fewer people who know about things the better.

So, it is self-evident that in moving the numbers from 11 to 13 that risk expands just a little bit further, and you don't need to make comment about who that might be—I don't think that's fair. But just that mere movement of numbers increases risk, and we should be aware of that. Then this question has to be asked: why has that been done? I listened carefully to the member for Wills and I didn't hear a sufficient answer to that. Why is it from 11 to 13? Why is it not to 15 or 17? Let's get everyone involved in the PJCIS. I think expanding it creates risk, and it hasn't been justified. Others have said it may have something to do with internal politics. There was nothing that I heard from the member for Wills that pointed to that, but we will see.

So we'll see, if and when this passes, who has been appointed and why, and there should be careful scrutiny of that. Again, that may not be the case. I hope it's the case, but, because of the lack of communication, the opposition is entitled to ask that question and is entitled to be a little bit suspicious. Because we've agreed on just about everything bar this, I won't use my full time, but I will just reiterate the importance of this committee. I gratefully acknowledge the people who serve in our intelligence agencies and highlight the inherent risk that comes with expanding this. It compromises, or at least potentially compromises, the need-to-know principle, and we will see where it goes from here.

James Stevens (Sturt, Liberal Party) Share this | Link to this | Hansard source

I rise to make a contribution on the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 2) Bill 2023, and I will start by reflecting on the fact that we are addressing the framework of oversight of our security services. I think the most important thing when we debate these matters, which doesn't happen regularly, as that we reflect on that appalling and outrageous episode in 1973 when the then Attorney-General, Lionel Murphy, led a raid on the ASIO offices in Canberra and then, of course, flew through the night to undertake another raid, on the Melbourne headquarters of ASIO, without consulting, history tells us, the Prime Minister of the day, Mr Whitlam, without any particular consultation and not acting with any form of warrant or permission from any judicial oversight.

That did lead to our looking at how it was that someone could unilaterally behave in that way and, in particular, undermine and frighten some of our allies who until then had felt a great deal of comfort and confidence in sharing important intelligence with ASIO and other Australian agencies because there'd never been a reason to fear that they could not be trusted. Indeed, those agencies could be trusted, but it turned out that the Labor Attorney-General in the Whitlam government was the one who couldn't be trusted and had frightened those allies—and with no justification whatsoever, because, of course, the outcome of that behaviour was that it was determined that there no substance to any motivation that he allegedly had for that conduct.

So that was a good opportunity for all of us to start developing a framework for and oversight of our intelligence services and, indeed, the behaviour and role of executive government in how they interact with the intelligence services, and we know that within this bill there are some matters that have been touched on by other speakers around that and the role that ministers such as the foreign minister have with ASIS et cetera. It's very important that we have a robust framework through the PJCIS to look at and provide oversight of the intelligence services because we understand and respect that they are the custodians of certain powers that do need an appropriate level of oversight that it is not possible to provide in the open daylight of other processes that the parliament has the use of when looking at other parts of government, because the nature of the security services is self-evidently that they undertake activities and are in possession of information that needs to be protected.

So the PJCIS, which has existed for many decades, is the mechanism that we have, and I think it has been extremely respected, particularly by current and former oppositions, who, indeed, are engaged to serve on that committee on the basis that there is a level of trust and that there is a very important agreement that the confidentiality and the protection information that they have access to through that process is thoroughly respected.

I have colleagues that are also friends—including the member for Fisher, who gave his contribution earlier, Senator Paterson from the other place, and people in the former parliament who served on this committee—who absolutely had the highest standard of respecting confidentiality around the information that they had access to through that process. This building can be a rumour mill at times, and at times you do hear things regarding what is said and whispered in corridors et cetera, and I have never, in my four years, heard any suggestion of any concern that membership of the Parliamentary Joint Committee on Intelligence and Security has ever been disrespected or compromised by any member who has served on it.

This is an important principle to defend and protect, and that is why we have this very serious concern about the surprising proposal from the government to increase the size of the committee. As all previous speakers have outlined, it currently has 11 members—a majority of government members, which is very sensible and common in parliamentary committees—from the two houses, and five have been traditionally from the opposition benches. There are two important principles there. I respect and don't dispute the member for Wills outlining that there is a capacity to appoint any nongovernment member to the committee as things stand, and that has happened in the past. But it seems very much more likely when you have a larger size of committee that it will be the case and may become standard practice of the government to have a non-opposition member in that committee on an ongoing basis.

My concern there firstly is that, with the greatest of respect to members that serve here on the crossbench, they do so proudly on the basis that they don't seek to be a part of a government. They are independents. They get elected and they say, 'We intend to go to Canberra to represent this electorate as an independent member. That creates a different dynamic compared to a member of the opposition who hopes to be in the government. While I completely respect the aggravation of these remarks to crossbench members, there are—and crossbench members reveal ad nauseam that it frustrates them and grates—absolutely times when governments and oppositions do work together and cooperate in ways that only governments and alternative governments can understand the benefit of doing. On PJCIS, when it comes to some of the most important elements of our national security arrangements, many of which are going to transcends governments for years if not decades into the future—AUKUS is one of the best examples of that—there are members who serve on the PJCIS who are from the opposition ranks who tend to be shadow ministers that may, if/when there is a change of government, serve in roles. The benefit of access to information they have through PJCIS is very valuable for the continuity of important decisions that we want a degree of bipartisanship around when it comes to the forward national security priorities of our nation. That is largely the way things are structured at the moment with the current composition.

My second issue is about increasing the size of the committee—my colleague the member for Menzies made these comments, so I will very briefly summarise and associate myself with the point he makes. There are currently 11 people on this committee, and there is a one-in-11 risk that, for whatever reason, important information is provided to the committee. I'm not suggesting any skulduggery or motivation from those members, because a risk in bringing 11 people into an awareness environment of certain things that they do need to be made aware of in order to discharge their responsibilities on that committee. These are obviously sensitive pieces of information and/or intelligence, and they have the opportunity to ask questions in a very controlled, closed format environment. And they come back to their colleagues and say: 'Look, we are discharging our responsibility to interrogate things. We can't tell you what information we've been provided to achieve the level of comfort that we have over these matters, but we are indeed comfortable, because we've been given access to sensitive information, to support justification for certain things.

Increasing that number of people from 11 to 13 obviously adds a degree of risk around the security and protection of that information. I completely defer to members in my party who have served on the PJCIS in government and opposition and who, having the benefit of that service—which I don't have—hold a concern that the increase in the number from 11 to 13 comes with a risk that is higher than the return or reward on expanding its membership. The whole principle of the PJCIS is that members who aren't on it rely on, count on, the people who are on it, because it's not like another committee that, generally speaking, operates in the glare of public oversight and media reporting et cetera—as it of course should not.

So, we count on those members to counsel the rest of us on the fact that they are comfortable with how that committee is operating and that they're confident around the oversight that they're undertaking of the various matters that come before them. I'm in the position, as a member of the opposition, that my colleagues who serve on that committee have raised these concerns. Having not served on the committee, I find their concerns compelling. But, more importantly, from a position of trust—which, again, is the whole point of the PJCIS—I absolutely trust them that those concerns are serious and warranted. That is the basis of our concern.

Of course, there are rumours and scuttlebutt around tensions within the government around serving on this committee. I respect and understand why being on such a committee is a sought-after opportunity. We are told that there are tensions within the government around its membership. If we're going through this process in order to make it a bit easier to manage personalities on the backbench of the government, then that is an appalling approach to the national security of this nation. If there's a personality issue, if someone's nose is out of joint because they wanted to serve on the committee—'Oh, well, we've only got six members, and we've put at least six on; I know: we'll increase the size of the committee; we'll get seven government members'—we'll find out who that seventh person is, and it will be very interesting when we find out who that person is who gets appointed by the government, the person who was so grumpy and threw some kind of tantrum about not being on the committee. This committee that is central to the national security of our nation is having the way in which is operates changed to accommodate a grumpy personality in the government, if that rumour is true—and obviously I don't know that it is.

Nonetheless, we support the other elements of this. We've outlined our concerns. We concede, as the member for Fisher indicated, that the government will get their way on this. It's regrettable and disappointing, because, for those who have criticised us for having a dissenting position on this issue of the PJCIS—and I absolutely agree that the history is that that is not the case—it should be something that the government reflects on: why they've chosen to jettison bipartisanship on this, why it is that we have raised these concerns on something that everyone puts way above petty partisan politics and it's been the government's decision to ram this change through and abandon that bipartisanship. That is regrettable to us. Nonetheless, they are deciding to do it. We hold those concerns, and time will tell what the true motivation for that change is. With those comments, I conclude my contribution.

Michelle Rowland (Greenway, Australian Labor Party, Minister for Communications) Share this | Link to this | Hansard source

I thank my parliamentary colleagues for their contributions to the debate on the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 2) Bill 2023. The government is committed to ensuring that the legal framework governing the national intelligence community is fit for purpose. It is vital that the responsibilities and powers of these agencies are underpinned by a rigorous legal framework and strong mechanisms. The national intelligence community is essential in protecting Australia's sovereignty and security. The Australian community trusts that our intelligence agencies are operating lawfully, with propriety and consistent with human rights. This great trust is built on an extensive and robust legal framework and reviews of this framework that underpin activities while also providing accountability and assurance.

It was through the comprehensive review of the legal framework of the national intelligence community, the Richardson review, in 2020 that Australia received its most detailed consideration of its national security laws since the 1980s. The review reaffirmed that Australia's intelligence legislation remains fit for purpose. Though it's complex, the review noted this complexity stems from the intertwined nature of protecting and promoting the rights of individuals and broader societal interests related to national security and public safety in our liberal democracy. To maintain this fine balance, appropriate and tailored oversight mechanisms must accompany agencies' powers to maintain the vital trust the public holds in their legitimate although necessarily covert activities. Mr Richardson handed his report to the former government in December 2019, and the former government released a report a year later in December 2020. The Richardson review made 203 recommendations. The former government implemented just 30 recommendations between December 2019 and May 2022.

This bill undertakes to implement a further 10 recommendations from the Richardson review that fall within the Attorney-General's portfolio. The measures in this bill will improve the legislative framework of the national intelligence community by: clarifying the Attorney-General's role in respect of the Australian Security Intelligence Organisation, ASIO; improving operational clarity for ASIO; improving oversight mechanisms; and clarifying the application of the Freedom of Information Act 1982 in respect of the Inspector-General of Intelligence and Security and the Australian Geospatial-Intelligence Organisation.

The bill will also amend the Intelligence Services Act 2001 to provide certainty regarding the level of detail required to describe the directed activities, which can be specific or general or by way of a class or classes, in a ministerial direction under paragraph 6(1)(e) of that act and to expand the membership of the Parliamentary Joint Committee on Intelligence and Security from 11 to 13 members. I note that the Parliamentary Joint Committee on Intelligence and Security presented its advisory report on this bill to the House on 12 May. The government will consider the committee's report and table a government response in due course.

In conclusion, this bill will continue to progress the important work of strengthening Australia's national security legislation as recommended by the comprehensive review. The government is committed to ensuring the legal framework of the national intelligence community is fit for purpose. The measures in this bill support this commitment and will provide increased assurance to the Australian community that intelligence agencies are operating in accordance with the law.

Question agreed to.

Bill read a second time.

Ordered that this bill be reported to the House without amendment.